an open-source thought experiment in psychedelic law and policy

Cannabis as an herb, literally and legally.

In my latest post I cited to the section of Gonzales v. Raich in which the decision indicated that moving cannabis to one of Schedule II through V would still subject cannabis to [I paraphrase] the heavy regulatory burdens of the Controlled Substances Act. The opinion goes on to say “Furthermore, the dispensing of new drugs, even when approved by doctors, must await federal approval,” citing to United States v Rutherford, 442 U.S. 544 (1979).

I see two significant points in that statement, which I discuss in reverse chronological order.

First, the reference to “federal approval” obviously means approval of a substance by the FDA as “safe” and “effective” since the decision cites to Rutherford, a decision holding that there is no exemption from the requirement that a new drug be approved by the FDA as safe and effective before it goes into commerce – even to terminally ill cancer patients. It is most interesting, then, that the Supreme Court distinguished between (a) approval by doctors of the use of a new drug and (b) approval of a drug by the FDA. This distinction tends to support Buford Terrell’s theory that “currently accepted medical use in treatment in the United States” does not mean FDA approval.

Second, this passage suggests that moving cannabis to Schedule II through V will not help because in the absence of FDA approval doctors still could not prescribe it nor could it be marketed.

Buford recently proposed a different approach to deal with problem: reclassify cannabis as an “herb,” i.e. a dietary supplement.

2 thoughts on “Cannabis as an herb, literally and legally.”

Three approaches are open to reforming the marijuana laws: 1) administratively by getting DEA to reeschedule and securing an NDA through the FDA, 2) legislatively by getting Congress to amend the CSA like the Frank/Paul Bill or my suggestion of moving it from the CSA to the Dietary Supplement Health and Education system, or 3) legally, but having the courts take some action against the DEA/CSA. I'm working on a post on “Marijuana Musings…” for this approach now.